If true, this report from the New York Times is both promising and troubling. First, the promising part — it looks as if the Trump administration could at any moment issue new guidelines effectively repealing the Obama administration’s broad, lawless, and radical transgender edicts. In May 2016, the Department of Justice and Department of Education jointly issued a letter that dramatically expanded the scope of Title IX to require that federally-funded schools (virtually all schools from kindergarten through college) to treat a student’s chosen “gender identity” as their “sex.”
While some dismiss this as merely implicating bathroom use, access to showers, and rooming arrangements for overnight trips, in reality it was far, far broader. As I wrote last year, it had implications for free speech, science education, religious liberty, and federalism. In other words, arguing that a man can’t get pregnant or a woman can’t have a penis could create a “hostile environment” or be considered discriminatory harassment. Teachers and administrators would be required to participate in and cooperate with the lie that boys can be girls, and girls can be boys. The curriculum would have to reflect that fact, sports teams would have to conform (with limited exceptions), and schools would be legally and formally opposed to orthodox Christian beliefs regarding the very nature of men and women.
To emphasize, this was all done by letter, not by statute or regulation. Executive branch agencies can’t simply make up the law. At the very least, the Administrative Procedure Act requires a proper rulemaking process. In reality, the change is so substantial that it can and should only come through Congress. Given the letter’s radicalism, breadth, and lawlessness, repealing it should have been an easy administrative call. Apparently, however, it’s not. Reportedly (and surprisingly), Betsy DeVos objects. Here’s the Times:
Ms. DeVos initially resisted signing off on the order and told President Trump that she was uncomfortable with it, according to three Republicans with direct knowledge of the internal discussions.
Mr. Sessions, who strongly opposes expanding gay, lesbian and transgender rights, fought Ms. DeVos on the issue and pressed her to relent because he could not go forward without her consent. The order must come from the Justice and Education Departments.
But Mr. Trump sided with his attorney general, these Republicans said, telling Ms. DeVos in a meeting in the Oval Office on Tuesday that he wanted her to drop her objections. And Ms. DeVos, faced with the choice of resigning or defying the president, has agreed to go along. The Justice Department declined to comment on Wednesday.
Though an official order from the administration was expected to be released as early as Wednesday, Mr. Sessions and Ms. DeVos were still disputing the final language.
This is troubling. Many of the Obama administration’s worst excesses came in the form of these Department of Education “Dear Colleague” letters, and it’s vital that DeVos move resolutely to restore the constitutional balance to publicly-funded schools. Moreover, she’ll have to do it in the face of sky-is-falling rhetoric from the academic left. There is an enormous ideological investment in using the Department of Education as an instrument of social engineering, and the Left will not cede that ground lightly. Here is an early Trump administration test. Will it restore proper legal processes and respect local control of public schools, or are some subjects simply too hot for it to touch?